IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Justice Qazi Faez Isa, CJ
Justice Amin-ud-Din Khan
Justice Athar Minallah
Criminal Petition No. 1192 of 2023
(Against the order dated 20.09.2023 of the Islamabad
High Court, Islamabad passed in Criminal Misc. No.
1285-B/2023)
Zahid Sarfaraz Gill. … Petitioner
Versus
The State. … Respondent
For the Petitioner: Mr. M. Shoaib Shaheen, ASC.
For the State: Ch. Rifaqat Ali,
State Counsel, Islamabad.
a/w Daud Sabir, SI.
Date of Hearing: 22.11.2023.
ORDER
Qazi Faez Isa, CJ. The learned counsel for the petitioner states that the
petitioner was falsely implicated in case arising out of FIR No. 173
registered at Police Station Secretariat, Islamabad on 29 May 2023 which
was registered as a counterblast to the written complaint submitted by the
petitioner against some police officials on 17 May 2023. He further states
that the record establishes that the petitioner was not at the stated place of
incident and this aspect of the case has not been examined by the
Investigating Officer.
- Notice was issued to the respondent-State on 30 October 2023 and
the learned State counsel is in attendance. He states that the chemical
report confirms that the seized substance was narcotic – charas – and the
total quantity is 1833 grams, which as per the Table in section 9(1) of the
Control of Narcotic Substances Act, 1997 (‘the Act’) comes under clause (c)
of its third category and prescribes a minimum imprisonment of nine years
and a maximum of fourteen years, and fine. The learned State counsel
further states that the petitioner was caught red handed by the police in a
Criminal Petition No. 1192 of 2023 2
public place at 6 pm in the month of May and the case against him is fully
established. - The learned counsel for the petitioner in rebuttal states that the
petitioner has attributed mala fide to the police and it is surprising that in
the month of May at 6 pm during daylight hours at a popular public park,
the only witnesses were policemen, none of whom made a video recording,
nor took any photographs of the seizure and arrest. - The facts and circumstances of the instant case makes it a case of
further inquiry. Accordingly, the petitioner is granted bail, in case arising
out of FIR No. 173, dated 29 May 2023, registered at Police Station,
Secretariat, Islamabad, subject to furnishing bail bond in the sum of one
hundred thousand rupees with one surety in the like amount to the
satisfaction of the Trial Court. This petition is converted into an appeal and
allowed by setting aside the impugned order. We think it appropriate to
make certain observations which were necessitated by the facts of this and
other narcotic substance cases. - We are aware that section 25 of the Act excludes the applicability of
section 103 of the Code of Criminal Procedure, 1898 which requires two or
more respectable inhabitants of the locality to be associated when search is
made. However, we fail to understand why the police and members of the
Anti-Narcotics Force (‘ANF’) do not record or photograph when search,
seizure and/or arrest is made. Article 164 of the Qanun-e-Shahadat, 1984
specifically permits the use of any evidence that may have become available
because of modern devices or techniques, and its Article 165 overrides all
other laws. - In narcotic cases the prosecution witnesses usually are ANF
personnel or policemen who surely would have a cell phone with an in-built
camera. In respect of those arrested with narcotic substances generally
there are only a few witnesses, and most, if not all, are government
servants. However, trials are unnecessarily delayed, and resultantly the
accused seek bail first in the trial court which if not granted to them is then
filed in the High Court and there too if it is declined, petitions seeking bail
are then filed in this Court. If the police and ANF were to use their mobile
phone cameras to record and/or take photographs of the search, seizure
Criminal Petition No. 1192 of 2023 3
and arrest, it would be useful evidence to establish the presence of the
accused at the crime scene, the possession by the accused of the narcotic
substances, the search and its seizure. It may also prevent false allegations
being levelled against ANF/police that the narcotic substance was foisted
upon them for some ulterior motives. - Those selling narcotic substances make their buyers addicts, destroy
their state of mind, health and productivity, and adversely affect the lives of
their family members. The very fabric of society is damaged. ANF and the
Police forces are paid out of the public exchequer. It is incumbent upon
them to stem this societal ill. The Prosecution services, paid out of the
public exchequer, is also not advising the ANF/police to be do this simple
act of making a recording and/or taking photographs as stated above. - A consequence of poor investigation, not supported by evidence
adversely affects the cases of the prosecution. The courts, which too are
sustained by the public exchequer, are burdened with having to attend bail
applications because the commencement and conclusion of the trial is
delayed. It is time that all institutions act professionally and use all
available lawful means to obtain evidence. A credible prosecution and
adjudication process also improves public perception. We expect that all
concerned will attend to these matters with the attention that they demand,
because the menace of narcotic substances in society has far reaching
consequences: by destroying entire households, creating societal problems
and casting a heavy financial burden on the State when drug addicts are
required to be treated. Moreover, research indicates that drugs addicts
resort to all methods to obtain drugs, including committing crimes. - Copy of this order be sent to the Secretary Ministry of Narcotics
Control, Government of Pakistan, Director-General, Anti-Narcotics Force,
the Secretaries of the Home Departments of all the provinces, InspectorGenerals of Police of all the provinces and of the Islamabad Capital
Territory. They may also consider whether they want to amend the
ANF/Police rules to ensure making video recordings/taking photographs
whenever possible with regard to capturing, preserving and using such
evidence at trial.
Criminal Petition No. 1192 of 2023 4
Chief Justice
Judge
Judge
Islamabad:
22.11.2023
(M. Tauseef /Hassan K.W.)
Approved for Reporting